Gwen Gawith The information deluge has created a muddy bog of intellectual property issues that are germane to schools and teachers. In this series of articles sponsored by the New Zealand Law Foundation, we’ll provide some clear definitions, explanations and examples.
Intellectual property: Intellectual property is an umbrella concept. What it covers includes copyright, patents, designs, trademarks, passing off, franchising and licensing. It’s a concept integral to the so-called Knowledge Age. In New Zealand it is the responsibility of the Ministry of Economic Development - info is available from the Intellectual Property Office of New Zealand’s information library. AJ Park sums it up: "Intellectual property law is concerned with commercially valuable ideas, secrets, concepts and reputations". The Intellectual Property Society of Australia and New Zealand says:
Intellectual property rights underpin much of the investment of time, money and resources that is expended in the process of innovation in our society. Through the laws of patents, copyright, designs, trade marks, unfair competition and trade secrets, protection is given to those who create, develop and market new concepts and ideas across a vast range of industries and occupations.
Copyright: Copyright in New Zealand is enacted in the Copyright Act 1994, and subsists in original literary, dramatic, musical and artistic works amongst other things. Computer programs, databases and multimedia productions are protected as literary works.
Copyright protects the expression of an idea, not the idea itself and enables the owner to prevent others from copying his or her original work. Copyright automatically comes into existence when a work is created and in the usual course of events the author is the first owner of copyright. Some exceptions to this exist, for example where a work has been created by an employee in the course of his or her employment, the employer will be the first owner of any copyright subsisting in the work. Presumptions of this nature are subject to any agreement to the contrary.
The copyright owner has the exclusive right to do certain things in relation to the work, including copying the work and issuing copies of the work to the public. Any other person who does any of these acts is infringing copyright.
In relation to literary, dramatic, musical or artistic works, copyright expires at the end of fifty years from the end of the calendar year in which the author dies. In the case of computer generated works, photographs, sound recordings, films, broadcasts, cable programmes and Crown copyright works, copyright expires 50 years from the end of the calendar year in which the work was made.
Who owns the copyright? The Intellectual Property Office of New Zealand says:
The first owner of a copyright is usually the author or maker. However, if the author or maker was employed and made the work in the course of his or her employment the employer is usually the first owner of copyright.
If the author or maker of some kinds of work (e.g. sound recording, films, photographs and computer programs) was commissioned to make that work, the first owner of the copyright is usually the person who commissioned the work to be made. In the case of works by employee or commissioned works, the parties can agree to vary the usual first ownership role...
How does this affect teachers?
If you write/ develop something while you are employed by one school and then you move to another school, who owns the copyright to your work and can you take it with you? (Probably not if you generated it as part of your work, but you need to have sought legal advice and determined the copyright status with your employer in advance, for example, as a contractual arrangement. Even if the school owns the copyright, and unless a waiver has been signed, the author still has certain moral rights, for example, to be identified as the author, and to object to changes made to work if it can be demonstrated that these would damage their reputation.)How can teachers breach copyright unintentionally?
You may not reproduce substantial extracts from a work - books, articles, websites. While you CAN quote and paraphrase material, you are infringing copyright if the quote or paraphrase constitutes a "substantial part" of the work.Adaptation: Any adaptation of any work must be authorised by the rights holder. The rights holder has an exclusive right to the adaptation of her/ his work. You can’t just adapt models, diagrams or illustrations with no reference to the owner of the intellectual property. Teachers often think that because they’ve changed it, it’s theirs. It’s not! Contact the owner of the i.p. and ask for permission. Then you can put "Adapted with permission from (source)".
Passing off: Passing off usually applies when another person seeks "to infer that his/ her products are somehow connected to your products, essentially ‘cashing in’ on the good will and reputation that your products may enjoy in the marketplace" (IP Links). Adapting and re- writing someone else’s work can constitute passing off if the owner of the i.p. feels it constitutes damage to their commercial interests or reputation. Simply, if they originated those materials, it is their prerogative to change or adapt them, not yours.
Photocopying: If your school does NOT have a licence with Copyright Licensing Ltd, in short, proceed with great caution!
Here’s a short summary, but there’s excellent advice available on the CLL website, and CLL run seminars for schools.
If your school DOES have a CLL licence you CAN copy:
- whole or part of an article or poem
- multiple copies (within restrictions - 10% or 1 chapter) for students
but you still CAN’T copy something if:
- the publisher is not part of the copyright licensing scheme
- the copyright owner has expressly excluded it from being copied under licence
- it constitutes "privately owned documents issued for tuition purposes and limited to clientele who pay fees" . So you don’t have the right to copy handouts from courses or seminars unless they say you may!
If your school does NOT have a CLL licence, your copying rights are determined by the Copyright Act. For example, you may not copy a poem, a short story or article for each member of your class!
Anthologising: This refers to the practice of compiling stories, poems and other materials and on-selling them to students. Compiling copies of materials covered by CLL provisions and recovering costs may be OK, but ethically this is ‘grey’ territory and preferably avoided. If you’re not licensed with CLL anthologising is a total NO NO under any circumstances.
Copyright in cyberspace
The ease with which schools and teachers can create their own websites, and the ease with which info from websites, etc, can be copied and adapted, raises some thorny intellectual property issues. Legal precedent lags behind the pace of technological innovation, but there have already been enough unfortunate incidents involving New Zealand teachers’ web publishing to suggest that schools and teachers need to examine these issues.The Internet is both a means of communication and a means of publishing. This sets up a fundamental tension between a medium with unprecedented opportunities for relatively cheap information sharing, on the one hand and, on the other, unprecedented opportunities for inexpensive publishing.
Why tension? The anarchic and free-for-all nature of the Web lends support to the intoxicating notion that, for the first time in the history of humankind, we are able to make information available to anyone, anywhere at any time. The tension arises when you ask who owns that information. The law is quite clear.
The owner of the copyright is, as suggested earlier, the author/ creator, employer or commissioning agent, and the same copyright laws apply to CD Roms, websites, multimedia presentations, e-zines and even listservs and bulletin boards as they do to books and periodicals. Similarly, while ideas and facts are not copyright, the form (print or electronic) in which those ideas and facts are expressed is automatically covered by copyright.
A simple way for schools and teachers to avoid trouble is to regard themselves as e-publishers, bound by all the legal and ethical considerations that bind any publisher.
Example: Example: A teacher goes to a seminar and finds it useful. She wants to share the info with her colleagues. She adapts the author’s model, scans the handout and uploads it onto the school website. Looked at from a sharing point of view, this is a nice gesture. Looked at from a publishing perspective, she needs a good copyright lawyer! The owner of the intellectual property is likely to be the author/ presenter of the seminar, and just because the teacher paid to attend and was given a handout, the intellectual property does NOT belong to her! You can own a book, but you don’t own the copyright to that book. Even making multiple copies of the handout is illegal without that i.p. owner’s permission. Re-publication on a website, even if only for ‘domestic consumption’ breaches copyright. Adapting the model without the author’s permission is also an infringement.
Solution: Schools and teachers are probably best advised to err on the side of caution and seek permission to copy and re-publish all not-original material on their websites and in their multimedia presentations - even illustrative material unless it is free clip art. As a rule of thumb, the copyright owner will need to authorise the display or availability of original material on the internet. Anything less can amount to copyright piracy - with the remedies for the owner including damages, penalties and reimbursement ... (Beaumont and Cronin, 2001)
Incidentally, if your school belongs to the Copyright Licensing (CLL) scheme, this scheme does not extend to copying from websites, CD Roms, etc.
What is covered? As indicated earlier, in addition to literary, artistic and musical compositions e-media such as websites, CD Roms, multimedia presentations, emails, etc are covered. Because so many educational sites rely heavily on material copied from other resources and sites (with or without permission), you can’t assume that, because you copied it, you are in the copyright clear. Just as commercial print publishers do you have to make every effort to track all the material you include back to it’s source and obtain the required authorisation. Even the music students use as background for their multimedia presentations needs to be copyright cleared!
The message is simple. Generate your own content, and make sure that any content is either original or is re-produced with permission. Large-scale recycling of other educators’ ideas is NOT ethically sound or recommended.
Linking: Linking and framing are grey territory legally, but not in terms of copyright. By linking to another page you risk the implication that you are the author of the material linked to. This may constitute ‘passing off’ rather than copyright infringement. Deep linking (linking to a specific page in another website, bypassing the home page) should be avoided for this reason.
Example: you are writing ‘study skills’ hints for your students and you find a good page on notemaking embedded in someone else’s site. So you link straight to this page, in effect incorporating their content into your site. This is legally dubious, as is linking where a portion of another site is viewed within a frame on your site. Direct linking also begs questions when, for example, the linked material breaches copyright. Are you responsible for someone else’s breach of copyright?
Ethics and good manners: At the heart of all of this are the simple old fashioned concepts of ethics and good manners. Again, it’s better safe than sorry. If you want to link to any one site, or to use their logo on your site, ASK them.
Where sharing and publishing work hand-in-hand is when people acknowledge that intellectual property is a commodity. It took time and money, to generate. With so much web education in the hands of self-employed educators who are not institutionally affiliated, it’s worth considering this thought: "anything generating income or interfering with another’s potential income dramatically increases the chance of suit" (Copyright on the Internet).
Most educators are happy to have their material shared if the integrity of the original is not compromised, if it doesn't affect their commercial business, and if you’ve taken the trouble to check the copyright and ask for permission where needed. Finally, William S. Strong reminds us that:
[M]ost of us feel so inundated by random information that we despair of ever managing to know even the essentials of what we must know. Good publishers, by screening the information for quality and validating it... perform an enormous service (Publishers’ Rights and Wrongs in the Cyberage).
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